A blog about criminal law and indigent defense.

House Votes to Punish Parents of Kids Who Sext

Last week, the House of Representatives voted to impose a 15-year, mandatory-minimum prison sentence on parents who know their teenage children are sexting but fail to prevent them from doing so.

The law is called the “Protecting Against Child Exploitation Act of 2017.” A number of commentatorshavecriticized the broad language of section 2(a) of the bill, which prohibits anyone from participating in the transmission of a sexually explicit image of a minor. Because over half of teenagers reportedly engage in this kind of behavior, Dan Savage observes, the Act is “basically a license to toss every other teenager in the country in jail.”

Yet Section 2(b) of the bill, which targets parents, is arguably worse. Although our representatives may have intended to punish parents who exploit their children, they have instead passed a law that criminalizes legitimate – even advisable – parenting decisions.

Section 2(b) imposes a 15-year, mandatory-minimum sentence on:

“Any parent, legal guardian, or person having custody or control of a minor who … knowingly permits such minor to engage in, or to assist any other person to engage in, sexually explicit conduct knowing that a visual depiction of such conduct will be produced or transmitted.”

The key words here are “knowingly permits.” That’s an extraordinarily low standard for a criminal offense. This language would apply to any parents who discover that their teenager is sexting with a romantic partner and then fail to cut off the child’s phone and internet access.

It is certainly justifiable for parents to take such decisive action when they catch their children sexting. But it is also understandable that some parents might prefer a different approach. Phones and the internet are essential to modern life, and parents might reasonably choose to tolerate sexting while warning their teenagers against it. Indeed, experts advise that parents should supervise their kids’ phone and internet use, but also caution that “throwing the book” at teens when they’re caught won’t do much good.

The authors of this bill suggest that we can trust prosecutors not to charge parents for harmless violations of the law. Yet experience shows that prosecutorsinvariablyoverreach. And because the Act requires judges to impose a minimum sentence of 15 years imprisonment, prosecutors can threaten people with prosecution under this law in order to coerce them to plead guilty to lesser charges.

The Protecting Against Child Exploitation Act is reckless in its use of broad language and harsh penalties to define criminal conduct. As a result, it empowers the government to prosecute parents for innocuous child-rearing decisions.